Citation: R v Ryan [2024] NSWDC 434
Court: District Court of New South Wales
Date: 12 July 2024
Judge: Bourke SC DCJ
Background
The offender, a 74-year-old man, was a registered person under the Child Protection (Offenders Registration) Act 2000, having previously been convicted of serious child sexual offences including aggravated indecent assault and sexual intercourse with a person under 16. As a registrable person, he was required to report to the Commissioner of Police any contact with a child where he was attempting to befriend that child.
Following his release on parole in October 2021, the offender moved into a Liverpool unit adjacent to a unit occupied by a woman and her two children. From March 2022, he had frequent contact with the family, including a 12-year-old girl referred to in the judgment by the pseudonym "Donna." That contact included daily conversations, giving her chocolate and money, being alone with her on several occasions, and physical contact involving touching her on the back.
The trial judge found that, by no later than 11 October 2022, the offender's contact with Donna had reached the point where he was attempting to befriend her. He failed to report that contact to the Commissioner within the required seven-day period, giving rise to the charge under s 17(1) of the Act.
Legal Issues
- Whether the objective seriousness of the offence warranted imprisonment
- What weight to give aggravating factors, including commission of the offence while on parole
- How to assess subjective matters, including the offender's age, health, criminal history, and lack of remorse
- How to calculate the sentence start date, given the overlap between pre-sentence custody and a revoked parole period
Decision
The District Court assessed the offence as falling within the mid-range of objective seriousness. The court noted that this type of breach is more serious than a technical reporting failure (such as not updating a residential address) because it involved actual contact with a child whom the offender was attempting to befriend. The vulnerability of the child, who was only 12 years old, and the deliberate nature of the conduct (the offender having been reminded of his obligations at or around the time of his last contact with Donna) both increased the seriousness of the offence.
The court identified the offender's commission of the offence while on parole as an aggravating factor, emphasising the heightened importance of punishment, deterrence, and community protection in that context. His criminal history, lack of remorse, and the circumstances of the offending led the court to assess his risk of reoffending as moderate. His prospects of rehabilitation were described as uncertain, though the court acknowledged that his advancing age and continuing supervision upon release were moderating considerations.
The court was satisfied that the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 was crossed and that a term of imprisonment was the only appropriate penalty. A finding of special circumstances was made on account of the offender's age and medical issues, reducing the non-parole period below the statutory norm. The sentence was backdated by approximately 75% of the period spent in custody, accounting for the fact that part of that period was also served in respect of the revoked parole sentence.
Orders Made
- Head sentence of 2 years' imprisonment, commencing 6 April 2023 and expiring 5 April 2025
- Non-parole period of 16 months, expiring 5 August 2024
- Finding of special circumstances based on the offender's advancing age and medical issues
Key Takeaways
- A breach of the reporting obligation under the Child Protection (Offenders Registration) Act 2000 involving actual contact with a child being befriended is more serious than purely administrative or technical reporting failures.
- The District Court placed significant weight on the fact that the offence was committed while the offender was on parole, treating this as an aggravating circumstance that heightened the purposes of punishment, deterrence, and community protection.
- Where an offender has been in custody for a period that overlaps with both a revoked parole term and pre-sentence custody on the new charge, the sentencing court retains discretion to backdate the sentence to a date that avoids double punishment without ignoring the separate parole liability.
- Advancing age and likely medical difficulties can constitute "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, justifying a reduction in the non-parole period relative to the head sentence.
- Continued registration and monitoring obligations upon release were treated as a relevant factor in assessing the offender's future risk, not as a mitigating factor going to the sentence itself.
Legislation and Cases Referenced
Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases: No cases were cited in the judgment.